EDMONDS, P. J.
Defendant appeals his convictions for first-degree sexual abuse, ORS
163.427, and first-degree unlawful sexual penetration, ORS 163.411, after a jury trial on
those charges. (1) On appeal, defendant makes several assignments of error. Because
we agree with his first assignment, we reverse both convictions.
The charges are based on allegations that defendant sexually abused his
four-year-old stepchild, who reported to her mother and eventually to investigators that
defendant had put his finger with salve on it inside her vagina. Defendant testified that he
had applied salve to the child's genital area three times over the course of a week at the
request of her mother to treat a rash. According to defendant, the child's mother had
given him the salve and told him to apply it. He denied penetrating her vagina for sexual
purposes.
Defendant first assigns error to the trial court's refusal to give the uniform
criminal jury instruction which provided:

"Penetration of the vagina, anus, or penis of another is not prohibited
if the penetration is conducted as part of a medically recognized treatment
or diagnostic procedure. The defendant has raised the defense that the
penetration in this case was conducted as part of a medically recognized
treatment or diagnostic procedure.
"The burden of proof is on the state to prove beyond a reasonable
doubt that this defense does not apply."

"Nothing in ORS 163.408 or 163.411 prohibits a penetration
described in either of those sections when:
"(1) The penetration is part of a medically recognized treatment or
diagnostic procedure; or
"(2) The penetration is accomplished by a peace officer or a
corrections officer acting in official capacity, or by medical personnel at the
request of such an officer, in order to search for weapons, contraband or
evidence of crime."

(Emphasis added.) The trial court refused to give the requested instruction because it
reasoned that the statute applies only to medical personnel. On appeal, as he did below,
defendant argues that the statute is not limited to acts performed by medical personnel.
According to defendant, because the requested instruction accurately states the law and
there was evidence to support it, the trial court erred in refusing to give it.
The issue framed by defendant's first assignment presents a question of
statutory interpretation. Our task is to discern the legislature's intent with regard to ORS
163.412(1). PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143
(1993). Did the legislature intend the statute to apply to any person who is performing a
medically recognized treatment or diagnostic procedure, or only--as the trial court
concluded--to medical personnel? If the former, defendant was entitled to a jury
instruction that, based on his testimony, informed the jury of the legal implications of his
conduct. See State v. McBride, 287 Or 315, 319, 599 P2d 449 (1979) ("A criminal
defendant is entitled to have his theory of the case presented to the jury if there is
evidence to support it. The trial court is not vested with discretion to refuse an instruction
supported by the evidence." (Citation omitted)).
The best evidence of the legislature's intent is the text and the context of the
statute. State v. Barrett, 331 Or 27, 32, 10 P3d 901 (2000). At this first level of analysis,
we consider rules of statutory construction that tell us how to consider the text of the
statute. Among those rules is the rule that we are "not to insert what has been omitted, or
to omit what has been inserted." ORS 174.010. In this case, the legislature's intent vis-à-vis the scope of the application of ORS 163.412(1) is easily discernable at the first level
of analysis.
The words "medical personnel" do not appear in the text of ORS
163.412(1). Rather, the statute refers to a "medically recognized treatment or diagnostic
procedure." If the legislature had intended for the statute to apply to conduct only by
medical personnel, it could have easily said so by inserting words such as "administered
by medical personnel" after the words "medically recognized treatment or diagnostic
procedure" in the statute. Indeed, in contrast to the provision at issue here, subsection (2)
of the same statute specifically refers to "medical personnel." The "use of a term in one
section and not in another section of the same statute indicates a purposeful omission."
PGE, 317 Or at 611. The intent of the legislature is clear on the face of the statute: the
defense created by the statute does not depend on the treatment or diagnostic procedure
being administered by medical personnel. It follows that the trial court erred in failing to
give defendant's requested instruction.
On appeal, the state appears to concede the above analysis and admits that
defendant introduced sufficient evidence to support the defense described in that statute.
The state asserts, however, that the error was harmless. It explains,

"In addition to finding that defendant committed unlawful sexual
penetration, the jury found he committed first-degree sexual abuse. * * * A
person commits that offense only if the person subjects another to 'sexual
contact.' ORS 163.415(1). And a person engages in 'sexual contact' only if
the person touches the sexual or other intimate parts of a person 'for the
purpose [of] arousing or gratifying the sexual desire of either party.' ORS
163.305(6). Thus, when the jury found that defendant committed first
degree sexual abuse, it necessar[ily] found that he touched the victim's
vagina for the purpose of arousing or gratifying his sexual desire.
Conversely, the jury necessarily found that defendant did not penetrate the
victim for the purpose of providing medical treatment. And even if the jury
did not necessarily make that particular finding, the jury's findings do
establish that there is a very 'little likelihood' that an instruction on the
medical-treatment defense would have caused the jury to give defendant's
'medical treatment' defense any credence."

In support of its argument that the error in this case was harmless, the state
points to case law involving different factual circumstances where the Supreme Court has
found an error affecting one count of an indictment to be harmless in light of what the
jury has necessarily found regarding another count. See State v. Hale, 335 Or 612, 628-29, 75 P3d 448 (2003), cert den, 541 US 942 (2004) (error in instructing jury on some
aggravated murder counts was harmless in light of unanimous verdicts on other counts);
State v. Lotches, 331 Or 455, 17 P3d 1045 (2000), cert den, 534 US 833 (2001)
(instructional error regarding one count of aggravated murder was harmless in light of
what jury necessarily found in convicting on attempted murder counts). The gist of the
state's argument is that a person who acts for the purpose of arousing or gratifying his
sexual desire necessarily cannot also be performing a medically recognized treatment or
diagnostic procedure. In that sense, the state asserts, this case is like Hale and Lotches.

"Although there is a 'medical treatment' defense to unlawful
penetration, there is no 'medical treatment' defense to first-degree sexual
abuse. Therefore, even if this court accepts defendant's first assignment of
error, that decision would not affect defendant's conviction for first-degree
sexual abuse. Rather, that decision would require a reversal of only
defendant's conviction for unlawful penetration."

Defendant remonstrates that the case must be remanded for a new trial on both counts.
As he explains,

"Although the medical treatment defense is not a defense to the crime of
first-degree sexual abuse, * * * the failure to give that instruction may have
affected the jury's verdict on that count. When deciding whether an error in
instructing the jury was harmless, this court considers the instructions as a
whole. The jury was instructed that it is a crime for an adult (including a
parent) to penetrate the vagina of a person under 12 years of age with his
finger. The jury was not instructed that such behavior is not a crime if it is
done as part of a medically recognized treatment or diagnostic procedure.
Consequently, the jury may have assumed that because no legally
sanctioned legitimate reason exists for a parent to engage in that activity,
defendant must have been acting with a sexual purpose when he did so.
During closing argument, the prosecutor argued, 'There is no reason
provided by this defense that is believable for this man rubbing salve or
ointment on this little girl's vagina.' The possibility that the jury inferred
from defendant's admitted action that he must have acted with a sexual
purpose makes it impossible to say with certainty that the failure to give the
medical treatment instruction did not affect the jury's verdict on Count 1,
first-degree sexual abuse. Consequently, the case must be remanded for a
new trial on both counts."

(Record citations omitted.) We agree with defendant. As this case was tried, the issue of
whether defendant acted with a sexual purpose is so intertwined with the issue of whether
he acted with the intent to provide medical treatment that we cannot say that the error
regarding the unlawful sexual penetration count did not affect the first-degree sexual
abuse conviction.
Our resolution of defendant's first assignment of error leaves no need to
address the remaining assignments of error. For the most part, those assignments focus
on hearsay evidence of various statements made by the four-year-old victim. It is unclear
whether those same issues will arise on retrial. In his remaining assignment, defendant
asserts that the trial court erred when it denied defendant's motion to sever the trial of the
encouraging child sexual abuse count from the trial of the other charges. That issue too
should not arise on retrial, inasmuch as defendant was acquitted on that charge.
Reversed and remanded for new trial.

1. Defendant also was charged with first-degree encouraging child sexual abuse,
ORS 163.684, based on a separate incident, but the jury acquitted him of that charge.

"If the supreme court shall be of opinion, after consideration of all the
matters thus submitted, that the judgment of the court appealed from was such as
should have been rendered in the case, such judgment shall be affirmed,
notwithstanding any error committed during the trial[.]"